"Transition Gaps" and the Rule of Law Imperative

8/18/2011 3:18:35 PM By

It goes without saying that a breakdown in rule of law prohibits economic growth and disincentivizes entrepreneurs. In the paper we released today, the fourth in our Expeditionary Economics Research Series, "Closing the Transition Gap: The Rule of Law Imperative in Stabilization Environments", author Brock Dahl examines the strategic, moral and legal arguments that creating and sustaining rule of law institutions is an imperative from the very first day of an intervention or regime change. Brock also offers a combined reading of international humanitarian and international human rights law that implies that intervening forces are obligated to prioritize rule of law and should leverage local actors to do so also.Failure, he argues, results in what he terms a "transition gap", which can be catastrophic to the viability of a new government and allow criminal activity, violent extremism and private and public sector corruption to flourish.

Abstract: In transitional environments where host governing institutions have been destroyed or significantly weakened, there is a significant risk that powerful actors will exploit that weakness by capturing key institutions and developing illicit criminal networks. These networks impede the subsequent development of the nation, ultimately undermining the objectives of the intervention. This article addresses the need for intervening forces to immediately establish adequate rule of law institutions during this “transition gap” period.

It first argues that developing the capacity to create or support local institutions in preventing, investigating and punishing criminal activities is not only sound strategy, but that it is morally incumbent upon intervening forces from the initial phases of the intervention to do so. It also posits ways for attacking criminality and corruption.

In addition to this strategic and moral argument, the article then offers a novel reading of occupation and human rights law, finding that this combined body of international law should be understood to require intervening forces to satisfy these law enforcement requirements. Finally, the article uses Afghanistan as a particular case study in suggesting ways that corruption and criminality can be addressed after local institutions have already been thoroughly compromised.

The article ultimately contends that international forces have strategic, moral, and legal obligations to establish rule of law institutions from the initial phases of an intervention. Consequently, policy-makers who authorize such interventions must fully understand the implications of those obligations, and the resource and time commitments necessary to intervene effectively and responsibly in transitional environments.

Brock Dahl formerly represented the U.S. Department of the Treasury on the Afghanistan Interagency Operations Group and worked in the Office of the Treasury Attaché at the U.S. Embassy in Baghdad. In those capacities, he helped to develop and implement U.S. policy on a range of macroeconomic, development, public finance, and counterinsurgency issues. Dahl has written on a range of national security topics, publishing articles on post-conflict economics in The Military Review, National Review Online, and The Colloquium. He authored a chapter on national security decision making for the public affairs textbook produced by the Close Up Foundation, which is distributed to roughly half the public high schools in the United States. Dahl also has a forthcoming article addressing the political and legal facets of the Egyptian transition to democracy, and has been recognized by the National Institute of Military Justice for his scholarly contributions to military law. As a 2010 Arthur C. Helton Fellow for the American Society of International Law, Dahl worked in Kabul to develop a means for using human rights law to attack local corruption and criminality. He holds a JD from The George Washington University Law School, a master of philosophy degree from the University of Oxford, Saint Antony’s College, and a bachelor’s degree in accounting from The George Washington University.